Court File and Parties
CITATION: Allan v. Dabor, 2017 ONSC 5452
COURT FILE NO.: 16-2225
DATE: 2017/09/14
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Brooklyn Sarah Allan, Applicant
AND
Gregory Michael Dabor, Respondent
BEFORE: M.G. Quigley, Matheson, Raikes J.J.
COUNSEL: John Mastorakos, for the Applicant
Gregory Michael Dabor, Self-Represented
HEARD: September 13, 2017
ENDORSEMENT
Raikes J.:
[1] The Appellant, Mr. Dabor, appeals from the order of Justice Byers dated June 16, 2016. The order arises in family law proceedings initiated by the Respondent, Ms. Allan.
[2] The parties were in a common law relationship which has ended. While together, they acquired and resided on property municipally known as 13515 County Road 24, Warkworth, Ontario. Title to the property is jointly held.
[3] On June 2, 2015, Justice D. Belch ordered the property listed for sale by July 3, 2015 for a sale price to be determined by the listing agent, Re/Max Campbellford. Mr. Dabor refused to sign the listing agreement. On December 17, 2015, Justice Kershman found Mr. Dabor in contempt for his refusal to abide by the order of Justice Belch. Mr. Dabor purged his contempt by signing the listing agreement.
[4] Justice Kershman ordered that the parties not be present for showings of the property by the realtor. Despite that order, Mr. Dabor took steps to interfere with or frustrate the agent’s efforts to sell the property.
[5] As a result, Ms. Allan put forward her own offer to purchase the property. The respondent then put in an offer to purchase that was $500.00 more. Ms. Allan accepted Mr. Dabor’s offer but he refused to close the transaction.
[6] On March 3, 2016, Ms. Allan made another offer to buy the property for $500.00 more with a buy-sell clause. Mr. Dabor then offered to buy the property for $500.00 more than her latest offer through a numbered company, which he acknowledged he owns and controls, without a buy-sell clause.
[7] Finally, Ms. Allan made an offer to buy the property for the same amount offered by the numbered company with a buy-sell clause which Mr. Dabor rejected.
[8] Ms. Allan brought a motion to require the parties to enter into an agreement of purchase and sale and to prevent Mr. Dabor from making any offer for six months. The matter was heard on June 16, 2016 by Justice Byers. It is his order that is the subject of this appeal.
[9] Justice Byers ordered:
The parties were required to enter into an agreement of purchase and sale as vendors, to sell the property to Ms. Allan as purchaser on the terms specified in the order.
The order specified that the purchase price was $170,000 and the transaction was to close within 30 days without any conditions.
If Ms. Allan was unable to close the purchase, then Mr. Dabor had the option to purchase on the same terms.
Mr. Dabor’s signature on the agreement of purchase and sale and title documents to close the transaction was dispensed with.
[10] In his endorsement, Justice Byers indicated that:
This is an application under the Partition Act, the applicant is entitled as of law to get it resolved expeditiously.
That time is now, not some time in the distant future.
The time for “negotiation” is over.
I have signed the order proposed by the applicant as awarded by me.
[11] Mr. Dabor raises a number of arguments on this appeal, the vast majority of which are entirely without merit. The only issue that raises the spectre of a proper ground of appeal is the argument that Justice Byers was not entitled as a matter of law to order the property sold to Ms. Allan under the Partition Act, R.S.O. 1990, c. P. 4: Dibattista v. Menecola (1990), 75 O.R. (2d) 44 (ON CA) and Osborne v. Myette, 2004 ONSC 7051.
[12] Ms. Allan submits that the order of Justice Byers must be looked at in the context of the previous orders including the contempt order. In that context, she asserts that Justice Byers was merely taking steps to implement and enforce orders previously made, from which no appeal was taken, and was not ordering a sale per se by one joint tenant to the other under the Partition Act.
[13] In Dibattista, much of the decision focused on when and whether partition instead of sale is appropriate. However, the Court of Appeal stated as follows regarding sale to a party:
- …Neither party can be given a right of first refusal. Both parties are free to bid at such sale and can be expected to act to protect their investment. The Menecolas may well be the successful purchasers, and so remain the adjacent landowner to Mr. Dibattista in the development planned in the proposed site area…. [Emphasis added.]
[14] In Osborne, Justice J. Ferguson held that the court lacks jurisdiction to order one joint tenant to sell his/her interest in jointly owned property to the other joint tenant.
[15] In the present case, the court made an order for sale of the property. Both parties bid on the property as they were entitled to do. Mr. Dabor had the higher offer but refused to close the transaction which put the sale process back to square one. The same chain of events followed and, given his prior refusal to close and his conduct leading up to this stage, the bona fides of the latest offer made by him were understandably suspect.
[16] The decision of Justice Byers does not confer a right of first refusal on Ms. Allan, nor does it compel the sale to one joint tenant by the other per se. Rather, Justice Byers effectively determined the successful bidder and put an end to Mr. Dabor’s strategy to avoid sale of the property.
[17] In this case, Mr. Dabor has repeatedly frustrated the sale of the property as ordered by Justice Belch. The only apparently bona fide offer on the table after exposure to the market is that of Ms. Allan. The order made by Justice Byers is merely a step in the implementation of Justice Belch’s order which has never been appealed. This is not an order compelling a sale under the Partition Act; it is an order clearing the hurdles placed by one joint tenant to hinder implementation of a consent order.
[18] In our view, there is no good reason to interfere with the decision below. In the circumstances of the matter considered in its entirety and with the antecedent orders, there was no error of law or other reviewable error.
[19] The appeal is dismissed. Costs are fixed at $7,500 inclusive of HST and disbursements payable by Mr. Dabor to Ms. Allan.
Raikes J.
I agree _______________________________
M.G. Quigley J.
I agree ______________________________
Matheson J.
Date: September 14, 2017
CITATION: Allan v. Dabor, 2017 ONSC 5452
COURT FILE NO.: 16-2225
DATE: 2017/09/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: Brooklyn Sarah Allan, Applicant
AND
Gregory Michael Dabor, Respondent
BEFORE: M.G. Quigley, Matheson, Raikes J.J.
COUNSEL: John Mastorakos, for the Applicant
Gregory Michael Dabor, Self-Represented
HEARD: September 13, 2017
ENDORSEMENT
M. G. Quigley J.
Matheson J.
Raikes J.
Released: September 14, 2017